LEAGUE OF WOMEN VOTERS OF HAWAII

Election Laws Study: Part I

This paper is the first in a series on the topic of Election Law which was adopted by the delegates to-the 1984 convention of the League of Women Voters of Hawaii.

The need for such a study became apparent during the 1984 session of the Hawaii legislature, when two bills were introduced in response to unusual circumstances that arose during a 1984 special election on
an initiative measure in Kauai County. One of these bills was to
prohibit the use of private funds to pay for public elections. The
other was to add restrictions to the use of the absentee ballot.

Because the League of Women Voters of Hawaii had no position on the subject of public versus private funding of elections, a committee was appointed to study the issue with the possibility of taking a
position by concurrence. This was done and the findings presented to
the members of the State Board. The decision of the Board was that the issue of payment for elections, plus other issues (such as absentee balloting), were quite complex and merited complete study and consensus.

BACKGROUND

In Hawaii, the problem of who should fund elections would probably arise only in special elections, and most likely in a special election on an initiative or referendum. This is because all other elections are anticipated and are budgeted. In the case of recall or
elections to replace an elected official because of death or other
reason, the election timing is stated by law and the money must be
forthcoming. There would be no reason or advantage for a private
party to finance any other type of election.

Initiatives, because they propose law, usually do not need emergency action and can wait until a regularly scheduled election to be decided.

Referenda, on the other hand, seek to repeal legislation which has been passed by a governing body.*

* In the counties of Honolulu and Maui, initiatives may be used to
repeal ordinances. So, in fact, they may be used as referenda.

In some jurisdictions on the Mainland, a law does not take effect immediately after it is passed. This gives citizens time to challenge the law by referendum. This time period is usually no more than 90 to 120 days. In other jurisdictions, including Hawaii, the law goes can go into effect immediately, even though it may be repealed.

All four Hawaii counties have charter provisions for some type of
initiative and/or referendum. There is considerable variation in the
provisions in each county. Only Maui and Kauai Counties give the County Council discretion as to when or if a special election should be held.

THE PROBLEM

As stated earlier, controversy arose in Kauai County when supporters of an initiative measure requested a special election. The opponents of the initiative wanted to wait until the next regularly scheduled election. Members of the County Council were divided on the issue, as well as concerned about where the money would come from to hold the special election.

Some Council members argued that the initiative was so important and so divisive to the community that the vote should be taken early to settle the matter. Other Council members agreed that the issue was ' important, but that it would not be fair to the opposition to hold the election so soon. Both factions agreed that it would be hard to come up with the funds for a special election. The supporters of the initiative then volunteered to pay for the special election. This did not solve the problem, however, but served to intensify the already heated emotions. One Council member who opposed the special election, stated that unless the supporters of the initiative gave proof that they had the money, further consideration of a special election should
cease. Arguments were made that it would be improper and illegal to
fund an election from private funds. Others argued that there was no law against it, and that individuals or groups could contribute funds for other government purposes, so why not for an election.

After receiving opinions from the Kauai Corporation Counsel and the Lt. Governor's office that there was no law against accepting the private financing, the Council voted five to two to accept the funds from the proponents of the initiative and scheduled a special election. The initiative passed.

During the debate over the issue and in subsequent hearings by the Hawaii Supreme Court and the U.S. District Court in Hawaii, only two precedents could be found dealing with the issue of private funds being used to pay for an election. At one time, Cleveland, Ohio had a law which required developers requesting zoning changes to pay part or
all the expenses for a referendum on their request. That law has
since been repealed. Las Vegas, Nevada has a law which prohibits
private funding of elections.

The courts, so far, have ruled that the election was valid and the plaintiffs complaints have been dismissed. The case is being appealed.

In the meantime, the issue of whether or not private funds should be ever be used to fund a special election can be determined by legislation or allowed to remain the same. (The bill referred to earlier that was introduced in the legislature to prohibit the use of
private funding was killed. There were arguments that a state law
would interfere with county homerule. There were also concerns that the language was overly broad and might even prohibit the use of private funds for voter information projects.)

In any event, the precedent for the use of private funds has been set. It could happen again in Hawaii or elsewhere in the future. It seems that it was completely legal to use private funds, but at the same time, such use was widely perceived as being, if not illegal, at
least unethical and biased. Bitter feelings and recriminations still
pervade the atmosphere.

This is why the League of Women Voters of Hawaii is asking its members to examine this issue carefully from both a philosophical as well as practical viewpoint when trying to decide on the issue.

In reading the following arguments--pro and con--please keep in mind that they are only arguments. Some may have less merit than others or appear very biased. That is the intent. Some arguments may be contradictory, this is not a mistake; some arguments can be used on either side of the issue.

THE CASE FOR PRIVATE FUNDING OF SPECIAL ELECTIONS

Allowing private parties to contribute money specifically for a particular special election means that citizens could vote on some issues on a more timely basis. If a jurisdiction does not have adequate funds to hold a special election and, therefore, specifies that the issue will only be placed on the next general election ballot,
there may be a considerable time-lag. If a group has been able to obtain sufficient signatures and feels that an issue must be voted on within a reasonable time, denying them the opportunity to provide funds to support that special election could be seen as denying them the opportunity to place an issue before the electorate.

If the people do not like the idea of a certain party paying for a particular election, they can register their protest by voting against the issue being supported by the funders of the election.

Elected representatives can face a real dilemma--how to put an important issue before the public in a timely manner, and still balance the books. Since the people have entrusted lawmaking and other important decision making powers to their representatives, they should allow them the discretion to not only schedule a special election, but determine if accepting private funds would be in the public good.

QUESTIONS AND ANSWERS (PRO)

QUESTION: How can counties budget for special elections?

ANSWER: This is a problem because no one can predict when there will be a special election. By allowing the use of private funds, budget deficiencies can be made up and taxpayers relieved of additional
burden.

QUESTION: Does allowing use of private funds automatically influence the outcome of the election?

ANSWER: There is no reason to believe that the use of private funds
will influence how a person votes. People must still make up their
minds on the merits of the issue..

QUESTION: Should taxpayers have to pay for all special elections?

ANSWER: There is no good reason why the public should have to pay for all special elections, since some of these may benefit primarily special interests.

QUESTION: Is there any other precedent for a special interest paying for an election?

ANSWER: None that we could find. But that does not necessarily mean
it is wrong to do so. This is an innovative way to hold a special
election that is not budgeted.

QUESTION: Might there be more special elections if private funds
continue to be allowed?

ANSWER: Not necessarily. Issues that might require a special election do not often come up. Issues of sufficient interest to entice private funding would probably be quite rare. Even if the result were more special elections, that is not necessarily something to be avoided.

QUESTION: Is it possible that a special election might be scheduled
so early that opposition could not be organized?

ANSWER: That would be most unlikely because the right to due process
is guaranteed in the federal and state constitutions. This includes the right to fair elections. Not only would the schedulers of such an election face a court battle, but they would also risk defeat at the
polls.

THE CASE AGAINST PRIVATE FUNDING OF SPECIAL ELECTIONS

Elections are public business and should be funded by public
money to ensure fairness. Sometimes what is "fair" and what is
"legal" are not the same. Another very important factor is what is
perceived as fair by the public. If a sizeable segment of the people believe they have been treated unjustly, it undermines their view of the electoral process, and makes them mistrustful of their elected officials.

If a governing body is given discretion to hold or not to hold a special election or to choose the time a special election may be held, there is a great possibility that the issue of cost will be brought up. Cost may well determine when or whether the election is held, or may be used as an excuse for not holding the election, or for putting it off. To let a private party pay for an election is to give undue advantage to the side which can obtain the money to hold it. Some people or groups would never be able to pay for an election.

Even if the cost issue is used only as a smokescreen to conceal reluctance to hold the election, that issue should be removed by mandating that all elections be paid for from public funds, thereby providing equal access to all.

The only reason that the proponents of an initiative would wish to pay for a special election would be because they do not want to wait until a general election. Because the timing of an election may influence the outcome, the party who can pay for it may have quite an advantage over its opposition. It could start planning the campaign long before the opposition could organize. This also puts the public at a disadvantage because it cuts down on time for fact-finding and debate.

QUESTIONS AND ANSWERS (CON)

QUESTION: If the main consideration is whether or not a special election will be held and when, why not take away these discretionary powers of the governing body?

ANSWER: As mentioned earlier, each county charter treats initiative
and referendum in a different manner. It is unlikely that all four

Hawaii counties will adopt identical wording. Such a law or
constitutional amendment could be proposed by the legislature. There would probably be opposition to this idea, though, because citizens might fear that legislators who oppose initiative and referendum would propose restrictive legislation.

Many supporters of initiative and referendum (especially referendum) maintain that in order for their use to be effective, an issue should be voted on without undue delay. It may not be realistic to require that every issue wait for a vote at the general election. It is good to provide some flexibility to deal with unforeseen problems.

QUESTION: If a problem is that serious or controversial, can't the responsible governmental body deal with it directly instead of waiting for a vote?

ANSWER: There is a basic conflict of interest operating here, in that an initiative or referendum drive is usually undertaken when the governmental body refuses to enact certain legislation or has enacted legislation that runs contrary to the wishes of a segment of the population. The reasons why the governing body took (or did not take) a certain action still remain, and it is not likely that the members of that body will change their minds. In fact, it is more likely that they will do what they can to uphold their position.

In addition to this, the county clerks of Hawaii---appointed by the council chairs (i.e., by the majority)---are responsible for scheduling special elections. The council majority thus maintains control of this important feature. If the initiative or referendum in question happens to be contrary to the wishes of the council majority and if that issue would be more likely to fail by manipulating the time of the vote, the council majority could easily do so.

QUESTION: If private funding of elections were prohibited, would that eliminate all possibilities of timing manipulation?

ANSWER: No. As we have seen, there will probably always be some
discretion left as to the exact date of a special election.

QUESTION: Then why prohibit private funding?

ANSWER: To rectify a key problem, which is whether an election will
be held or held early solely because a group can or cannot pay for it.

This should never be the basis for such a decision. Equal access to
the ballot is a Constitutional right which should not be bartered.

QUESTION: Since a government may accept gifts, wouldn't it be possible for a gift to be given to the general, fund and then transferred over to use for a special election?

ANSWER: This might be done, but it would be so flagrant as to invite litigation and/or threat of recall of the officials responsible. The law could be worded to prohibit such transfers of funds to make it even more difficult.

QUESTION: Would such a law make it illegal for private parties to
contribute to non-partisan voter education activities?

ANSWER: Not if the law is worded properly; i.e., so that only the election process is covered and voter education projects are exempt.